Iraq war and the law: what's at stake?

Thursday, 20 March 2003

University of Adelaide graduate Professor James Crawford SC, FBA is a well-known international lawyer, combining an academic career that started at the University of Adelaide with practical work in the international law arena. He has appeared on numerous occasions before the International Court of Justice and other international tribunals, acted for the Crown Prince of Jordan and was the first Australian to serve on the United Nations International Law Commission.

He is currently at the University of Cambridge, serving as Whewell Professor of International Law, Professorial Fellow of Jesus College and Director of the Lauterpacht Research Centre for International Law.

Professor Crawford responded to the following questions as they relate to the pending war:

Question: Over the past couple of weeks, there has been suggestion that an attack on Iraq would (i) breach international law and (ii) expose our leaders to trial as war criminals. Is this a breach and can the President of the US, British and Australian PM's for example, be subjected to a War Tribunal, and how can, if at all, this be compared to what is happening to Slobodan Milosevic?

Professor Crawford: There are two completely different issues -- whether military action against Iraq is justified and whether conduct potentially constitutes a war crime or other crime presently within the jurisdiction of the International Criminal Court.

War crimes are defined by international law irrespective of the legality of the underlying conflict.

You can commit a war crime (e.g. deliberately bombing a hospital, executing prisoners of war) while acting in self-defence. Conversely you can conduct an unjustified or illegitimate war in an entirely lawful way. This distinction goes back to the 16th century and is very firmly established.

Those who say that by supporting the war against Iraq, Mr Howard and others risk prosecution do not know what they are talking about. Worse still, they risk bringing the fledgling institution of the International Criminal Court into disrepute.

That said, I do not believe that Security Council resolution 1441 authorizes the use of force without a second resolution -- either taken alone or in combination with much older resolutions concerning the Iraqi invasion of Kuwait. There is no imminent situation of self- defence, no imminent humanitarian crisis, and therefore no legitimate justification for the use of force.

That is not to say there is no case for action. I do not think anyone seriously believes Iraq has disarmed as required by Resolution 1441. More fundamentally, Saddam Hussain is, to my knowledge, the only living person to have himself committed or ordered war crimes, crimes against humanity and genocide -- the three crimes within the jurisdiction of the ICC at present.

When he was committing those crimes -- against the Marsh Arabs for example, or by using chemical weapons against Iran or bombing Iranian cities -- the West, and especially the United States, was silent. That is why so many feel uneasy about the imminent conflict.

But we should not mix up our (justified) concerns as to the inconsistency of Western policy towards Iraq in the 1980s and after 1991, or our (justified) concerns as to what the US administration may be seeking to do in dismantling the multilateral system, with any sympathy for the primary target of the attack. The sooner the present Iraqi regime is removed the better.

Question: Some commentators have said that International Law is not like domestic law, with clear commands and penalties. It is much more vague and malleable and nations such as the US and Australia will be able to assemble a respectable argument in international law for their actions.

Is this accurate and based on what we know at this time, do they have a strong case?

Professor Crawford: All legal systems are to some extent malleable and uncertain, and international law is more malleable and uncertain than developed legal systems, which have institutionalised the rule of law.

Also its sanctions are indirect and largely based on reciprocity, which makes them very difficult indeed to apply against major powers such as the United States which are prepared to pay the costs of unilateral action and of comparative isolation.

But still the system exists -- and it is the only shared normative system that exists at the international level. And there are relatively clear rules in this area. For example I find it hard to believe that anyone could deny that the United States had a right of self-defence against the Government of Afghanistan and Al Qaeda in the aftermath of September 11 -- and the Security Council so decided, unanimously.

The question in dispute here is a narrow one. It concerns the interpretation of Security Counci resolutions, and not wider and vaguer notions of pre-emptive self-defence.

It is possible for people to disagree on this narrow issue. As I have said, my own opinion (and that of most international lawyers) is that Resolution 1441 did not go as far as to authorize the use of force. In the first Anglo-American draft there was a paragraph that expressly did so. It was removed before the resolution was adopted.

Question: Are member countries bound to the statutes of the UN's Security Council and if not, this could clearly see the organization lose all credibility? Do you agree?

Professor Crawford: Yes to the first question. No to the second.

There will have to be a Security Council resolution following the defeat of Iraq, guaranteeing its territorial integrity and providing for an interim administration. Just as in Afghanistan, just as in Kosovo. Not even the United States has the will and staying power to clean up the mess created by war, after the war is over.

That is one thing to have come out of the Tenerife summit -- though it was obvious beforehand.

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